Public Health and International Economic Law: Alcohol Labelling, Obesity Prevention Laws and Beyond
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1 Public Health and International Economic Law: Alcohol Labelling, Obesity Prevention Laws and Beyond UNIGE-IISD Lunch Series on Investment Disputes, 2 July 2018 Professor Andrew D Mitchell Profile a.mitchell@unimelb.edu.au LinkedIn
2 Presentation Outline 1. Regulation, Risks & Recommendations 2. Case Study: Thai Alcohol Labelling Two radical policies to control the labelling of alcohol from Thailand Compatibility of Thai policy with international investment law IIL-based recommendations for Thailand s labelling policy
3 Regulation, Risks & Recommendations
4 NCDs, Risk Factors & Regulatory Measures Non-communicable diseases (NCDs) Cardiovascular diseases Cancers Chronic Respiratory Diseases Diabetes Behavioural Risk Factors Tobacco Use Unhealthy Diet Physical Inactivity Harmful Use of Alcohol Regulatory Measures Taxation Advertising Restrictions Distribution Restrictions Packaging and Labelling Requirements
5 INSERT CHILE TRAFFIC LIGHT GRAPHIC
6 Assessment of Risks to Regulating States Type of Risk Consequences Factors Increasing the Risk Use of Dispute Settlement Adverse Finding or Outcome - High legal fees - Long timeframes - Strain on human resources and expertise - Payment of compensation - Repeal of the measure - ISDS mechanisms - Lack of procedural controls - Poor signalling of commitment to measure, confidence in its legality, and capacity and intention to defend any challenge - Explicitly/implicitly discriminate - Restrict imports or foreign investments - Restrict trademarks - Lack of evidence - Improper process
7
8 Recommended Actions for Regulating States 1. Review trade & investment treaties sufficient regulatory autonomy, modification, termination 2. Participate in & promote the development of evidence-based regional & international standards 3. Anticipate complaints and litigation counter-arguments, resources to defend 4. Follow best practice when developing domestic measures process, evidence, non-discrimination 5. Manage future foreign investment screening: review IIAs, domestic regulations, investment applications
9
10 Case Study: Thai Alcohol Labelling
11 Alcohol Labelling and International Investment Law: Thai Warning Labels Thai warning labels proposal introduced in 2010 but not given legal effect. Highly controversial in WTO TBT Committee: see O Brien and Mitchell On the Bottle: Health Information, Alcohol Labelling and the WTO Technical Barriers to Trade Agreement (2018) Queensland University of Technology Law Review.
12 Alcohol Labelling and International Investment Law: Thai Warning Labels
13 Alcohol Labelling and International Investment Law: Thai Warning Labels Content of the labels drinking alcohol causes the hypertension and liver cirrhosis; alcohol intoxication leads to the accident; drinking alcohol leads to unconsciousness and even death; drinking alcohol leads to inferior sexual performance; drinking alcohol leads to adverse health effects and family problems; alcohol is a bad influence on children and young people Alternative translation: alcohol could cause.
14 Alcohol Labelling and International Investment Law: Thai Warning Labels Design of the labels four colours and six fonts 50% of the largest side of a square container or 30% of the surface area of the entire package for other shapes six labels were to be rotated every 1000 units of production.
15 Alcohol Labelling and International Investment Law: Thai Marketing Ban Part 1: ban on messages which are unfair to consumers or lead to bad effects to the society as a whole. Part 2: ban on messages which directly or indirectly persuade [people] to consume alcohol or which pretentiously exaggerate the benefit or quality of alcoholic beverages.
16 Alcohol Labelling and International Investment Law: Thai Marketing Ban Part 2 ban includes messages which: suggest that drinking can lead to social and sexual success; are about or include pictures of athletes, artists, singers, movie stars, actors; use cartoons; use the promise of a donation to charity from the purchase or consumption of alcohol; and encourage participation in activities such as music, sports, contests or recreation.
17 Alcohol Labelling and International Investment Law: Thai Marketing Ban
18 FET & Expropriation Are the warnings reasonably related to a rational policy and is their impact proportionate to their objective? Margin of appreciation & deference International basis Scientific evidentiary basis
19 Summary of Investment Analysis Thailand s warnings are generally consistent with the traditional international investment obligations Risk that the content of certain labels may be found excessive?
20 Recommendations Tighten the wording of the warnings from cause to can cause. See, eg, Yukon Territories in Canada: alcohol can cause cancer
21 Yukon Territories Canada
22 Recommendations Review the evidence base for the warnings
23 Recommendations Studies on US labels introduced in 1989: no behaviour change; some effect on intervening variables (intention to change, conversations about alcohol, willingness to offer to drive someone home if they are affected by alcohol) No studies of other labelling schemes
24 United States
25 Recommendations Evidence for design, presentation and rotation requirements: Supported by emerging evidence from prototype alcohol labels (Valance et al, Hobin et al, Miller et al, Pettigrew et al) Also evidence borrowed from tobacco graphic health warnings (Noar et al) But advisable to follow Yukon lead and support research: pre-studies of label content and design that is likely to be salient to Thai population Implementation studies
26 Recommendations Marketing rule: Review wording But even more important for Thailand to support research on impact of alcohol labelling on consumption Little existing evidence on impact of label on consumption: see Gates et al (2007); Purves, Stead and Eadie (2014) Thailand would need to rely on evidence about impacts of other forms of alcohol marketing on under-age consumption: see systematic reviews from Smith and Foxcroft (2009); Anderson et al (2009); Jernigan (2017)
27 Further References Tobacco Packaging Measures Under International Investment Law: The Claims against Uruguay and Australia in Alberto Alemanno and Enrico Bonadio (eds), The New Intellectual Property of Health-Related Goods (Edward Elgar, 2016) Australia s Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law in Bryan Mercurio and Kuei-Jung Ni (eds), Science and Technology in International Economic Law: Balancing Competing Interests (Routledge, 2014) (ISBN ) (with Andrew Higgins and James Munro). Legal Responses to Corporate Maneuvering in International Investment Arbitration (2014) 5(1) Journal of International Dispute Settlement (with Tania Voon and James Munro). Time to Quit? Assessing International Investment Claims Against Plain Tobacco Packaging in Australia (2011) 14(3) Journal of International Economic Law (with Tania Voon). The National Interest in Trade and Investment Agreements: Protecting the Health of Australians in John Farrar, Mary Hiscock and Vai Io Lo (eds), Australia s Trade, Investment and Security in the Asian Century (World Scientific, Singapore, 2015) (with Jessica Casben). Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong Australia BIT in Tania Voon et al (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar, 2012) (ISBN ) (with Tania Voon). Protecting the Autonomy of States to Enact Tobacco Control Measures Under Trade and Investment Agreements (2014) Tobacco Control (with Elizabeth Sheargold). Plain Packaging of Tobacco Products in Australia: A Novel Regulation Faces Legal Challenge (2012) 307(3) Journal of the American Medical Association (with David Studdert).
28 Copyright The University of Melbourne 2011
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